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[2010] ZAGPJHC 50
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KRB Electrical Engineers/Masana Mavuthani Electrical & Plumbing Services (Pty) [2010] ZAGPJHC 50 (17 March 2010)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
Case No: A5026/09
In the matter between:
KRB ELECTRICAL ENGINEERS /
MASANA MAVUTHANI ELECTRICAL &
PLUMBING SERVICES (PTY) LTD
t/a KRB MASANA
Appellant
And
JYOTI STRUCTURES AFRICA (PTY)
LTD
First
Respondent
ESKOM ENTERPRISES (PTY) LTD
Second
Respondent
J U D G M E N T
MBHA J
[1] This appeal is specifically
against paragraph 1 of the order of Mathopo J, granted on 29 April
2009 in terms of which the first
respondent was ordered to return
undisturbed co-possession with the respondents of the applicant’s
batching plant camp, situated
at Volksrast, and the satellite camp,
situated at Utrecht, where the appellant’s goods were situated.
[2] The appeal is not against the
reasons or judgment granted by Mathopo J, but is against the order
which, appellant submits, was
incorrectly granted after the learned
judge had found that the first respondent spoliated the Applicant
without proceeding lawfully
with an ejectment order.
[3] The
appellant, who will for convenience be referred to as the
applicant, brought an urgent spoliation application
compelling
the first respondent to return to the applicant undisturbed
possession of “
the
area situated at Majuba Umfolozi 1765 KV Transmission Line,
Section A, Kwazulu Natal”,
(“the
site”).
[4] In terms
of the agreement that was concluded between the applicant and the
first respondent, the first page of which was attached
to the
founding affidavit as annexure “KRBA”, the applicant was
granted access to and possession of the site in order
to perform
building works thereto, during or about April 2008 and remained in
such possession of the site until 8 April 2008.
[5] It is
common cause that on 8 April 2008, the first respondent locked
out the applicant’s workers from accessing
the site, resulting
in the urgent application that served before Mathopo J. The
applicant has a site office and goods situated
at the site. It
was never disputed that the applicant had already performed
substantial works at the site. It was also
not disputed that
the applicant was in undisturbed possession of the site and
equipment. However, the first respondent averred
that the site
in issue i.e. where the applicant was despoliated, included four
fenced off areas (the site camps) which were inter
alia, utilised for
the siting of offices of both parties. The first respondent
accordingly averred that the applicant was
in possession of one of
the site camps and not of the whole transmission line as described in
the agreement.
[6] In
dealing with the definition of site, Mathopo J, stated that
“
In my
view nothing much turns on the exact description of the area in view
of the respondent’s concession that the applicant
was indeed in
possession of one of the areas which is part and parcel of the whole
transmission line”
[7] Clearly,
the first respondent is attempting to utilize this paragraph in
Mathopo J’s judgment in substantiating its allegations
that the
learned judge found that the applicant only had possession of one of
the site camps and therefore is only allowed restored
co-possession
of such site camp.
[8] However, as the learned judge
found that the site camps form part of the entire site as a whole,
possession of the greater entire
site includes possession of the
lesser i.e. the site camps. It is trite that in circumstances
as in the present case that
the converse is also true, namely
possession of the lesser includes possession of the greater.
[9] A reading
of the judgment of Mathopo J reveals that he correctly understood the
purpose of a building contractor having possession
of a building site
when he stated:
“
14.
In my view the applicant as a sub contractor in terms of the
agreement with the respondent occupied and took control of the
site
in order to carry out the work and remained in occupation for that
purpose. It had possession of the site which may
be protected
against any spoliation. As a builder it possessed the site in
order to secure the benefits of its contract and
should not be
deprived of its possession of the site by the owner of the property
or anyone else including the respondent.
15. The admission by the respondent
in its answering affidavit that it cancelled the agreement, took
possession of the site pursuant
to clause II of the agreement and
denied the applicant further access to the site clearly shows or
indicates that it spoliated
the applicant when it locked the site and
its workers.
One needs to look no further than
the respondent’s affidavit which is replete with allegations
seeking to justify the termination
of the agreement and taking over
the project that the respondent spoliated the applicant….
17. The respondent should
accordingly be ordered to restore possession of the site to the
applicant.”
[10]
The correctness of this approach was in fact confirmed in the case of
Pretoria
Racing Club v Van Pietersen 1907 (TS) 687
where
the court held that in cases of ordinary building contracts, and
where a builder was contracted to erect a house on a particular
plot
of land, the builder would be in possession of that land for the
purpose of carrying out the works. The court also held
that the
mere fact that the contract contains no express clause recognising
that possession, did not matter at all.
[11]
This approach has been followed in other decisions. In the case
of
Scholtz
v Faifer 1910 (w) 243
it
was held that possession of an outbuilding on the building site would
have constituted possession of the entire building site
had the
applicant remained resident in the building. The decision in
Stocks
Housing (Cape) (Pty) Ltd v Chief Executive Director, Education and
others
1996 (4) SA 231
(c)
spe
cifically
makes the point that a building contractor who entered a building
site and occupied and took control of it in terms of
his contract in
order to carry out the contract work, and remained in occupation for
that purpose, had possession of the site which
might be protected by
a spoliation order.
[12]
The first respondent submits that Mathopo J’s order only makes
mention of the restoration of
co-possession of the batching plant
camp and satellite camp, which is only part of the site as a whole
and as a result of such
it will only restore such possession to the
applicant and will not restore possession of the entire site in
accordance with the
possession the applicant enjoyed before the
spoliation.
[13]
Significantly, in his judgment Mathopo J distinctly referred to the
word “
site”
thirty eight (38)
times and only referred to the phrase site camp(s) four (4) times.
He clearly saw a distinction between
the entire site where the
applicant had to perform the works and the specific site camps where
the applicant had its offices and
equipment.
[14]
I f Mathopo J was of the opinion that the applicant did not have
co-possession of the entire site,
in as far as it had such possession
in order to execute its works in terms of the agreement between it
and the first respondent,
no doubt he would have made such
distinction in his judgment.
[15]
Furthermore, if he was of the opinion that the applicant was not
spoliated of the other parts of the
site, in as far as it had such
possession to execute its works in terms of the agreement between it
and the first respondent, similarly
he would have made mention of
this and would have distinguished it from the other parts of the site
which he ordered restoration
of co-possession of. Significantly
the learned judge chose not to do this. In fact in the sentence
preceding the order
he stated, expressly, that the respondent should
be ordered to restore possession of the site to the applicant.
[16]
In my view this is a clear indication of what Mathopo J’s
intention was when he ordered the restoration
of co-possession of the
site, in as far as the applicant had such possession to execute its
works in terms of the agreement between
it and the first respondent.
Significantly, the area at which the applicant has to perform its
works i.e. the site, is expressly
described in clause 1.0 of the
agreement as “
Majuba
Umfolozi line 1765 KV Transmission Lane, Section A, Kwazulu Natal.
Furthermore,
the same description is found at the top of each page of the Bill of
Quantities regulating the charges between the
parties for various
works to be performed by the applicant.
[17]
If the judgment and the order are read together, there is a clear
ambiguity in that the judgment correctly
refers to the site as a
whole yet the order only refers to a very small part of the entire
site. On a reading of the judgment
and the order as a whole,
the ambiguity persists and should be varied, clarified or explained
in order to give effect to the meaning
and intention of the court.
[18]
I accordingly find that t he learned judge erred in couching the
first paragraph of his order in the
manner he did and it should be
changed to reflect his intention so that it flows and accords with
the entire judgment.
[19]
Prior to the hearing of this appeal, the first respondent launched an
application for an order that
the appeal should be struck from the
roll with costs. The basis of the application was the
appellant’s ( applicant’s)
alleged failure to comply with
the provisions of Rule 49 (13) of the Uniform Rules of Court.
[20] At
the commencement of the hearing, Mr Swart, appearing for the first
respondent, informed the
court that due security had since been
furnished by the appellant and that the first respondent was not
proceeding with the application.
However, the first respondent
was seeking costs in respect of the application.
[21]
Ms. Smit, appearing for the appellant, had not had sight of the
application. It appears
that no opposition was even filed
to the application. However she referred the court to Annexure
“JPB13” to the
application which is a letter dated 26
February 2010, addressed by the first respondent’s attorneys to
the appellant’s
attorneys in which the appellant is given until
close of business on Wednesday 3 March 2010, within which to pay in
the requisite
security.
[22] The
application papers were served on the appellant’s attorneys on
1 March 2010 at 13h26.
Clearly, the launch of the application
was premature.
[23] For
this reason I do not deem it fair that the appellant should be
mulcted with any costs in
respect of this application
I accordingly propose the following
order.
With regard to the application
for the striking off of the appeal, each party shall bear its own
costs.
The appeal is upheld with costs and
paragraph 1 of the order of Mathopo J , granted on 29 April 2009 is
set aside and is replaced
with the following:
“
1.
The first respondent is ordered to return undisturbed co-possession
of the area situated at Majuba Umfolozi 1765 KV Transmission
Line,
Section A Kwazulu Natal (“the site”) to the Applicant,
within twenty four (24) hours of service of this order
on the first
respondent’s attorneys of record.”
Judge BH Mbha
I agree
Judge M Jajbhay
I agree
Judge CG Lamont